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Posted on Wednesday, February 21, 2018

Government Contractors Must Be Cautious in Selecting References

Identifying “good” references on past government work is key to getting future work. Especially critical is the almost impossible job of confirming with those references that they actually will give the government that good reference.

A recent GAO decision highlights the importance of confirming that a past performance reference will be a positive one. In response to a Department of the Interior (DOI) solicitation, offerors had to give DOI “a minimum of three (3) references with the ability to verify past performance, particularly with other Federal Agencies.” This meant that offerors did not have to identify all customers on “relevant contracts” over the past three years. Instead, offerors could cherry-pick the references of their previous work and give the government only references believed to be favorable.

Government and Military Certification Systems, Inc. (GMCS) went overboard and gave DOI eight references. DOI chose to reach out to only one of the past performance references provided by GMCS. Unfortunately for GMCS, that reference gave GMCS a negative evaluation, which was one reason GMCS lost the contract.

Unfortunately, the reference misled GCMS by initially telling GCMS that it had not been contacted by the agency, and then later telling GMCS that it gave DOI a positive performance review. Based on this representation from its reference, GMCS believed DOI misevaluated its past performance and protested the award to GAO. However, GAO found that the agency sufficiently demonstrated that it did contact the reference and there was nothing improper with DOI relying on the negative past performance information it received. GAO also noted that there is no requirement that an agency contact all of an offeror’s references. GAO denied the protest.

The belief that “people will always be kind” can get contractors into trouble. Because references can mislead vendors, vendors in cherry-picking situations should rely, when possible, on references in past performance databases. Vendors can see the past performance information a reference has provided and have an opportunity to challenge negative past performance reports in the databases. Although, generally, vendors must get a chance to rebut bad past performance information, that is not always true.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the February 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here.